Citation Nr: 1044372
Decision Date: 11/26/10 Archive Date: 12/03/10
DOCKET NO. 08-19 009 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Whether the Veteran filed a timely Substantive Appeal to a
September 2005 rating decision that denied his claims of
entitlement to service connection for residuals of a neck injury,
residuals of a left shoulder injury, a low back disorder, an
upper respiratory disorder, and hypertension.
2. Entitlement to service connection for residuals of a neck
injury.
3. Entitlement to service connection for residuals of a left
shoulder injury.
4. Entitlement to service connection for a low back disorder.
5. Entitlement to service connection for an upper respiratory
disorder.
6. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. D. Deane, Counsel
INTRODUCTION
The Veteran served on active duty from April 1990 to March 1996.
These matters come before the Board of Veterans' Appeals (Board)
from a September 2005 rating decision and November 2007
determination of the Department of Veterans Affairs (VA) Regional
Office (RO) in Waco, Texas.
In July 2010, the Veteran testified at a personal hearing before
the undersigned Acting Veterans Law Judge regarding only the
question of timeliness of his Substantive Appeal. The Veteran
submitted to the Board additional evidence for consideration in
connection with the claims on appeal. During his hearing, the
Veteran submitted a waiver of RO jurisdiction of such evidence.
The Board accepts this evidence for inclusion in the record on
appeal. See 38 C.F.R. § 20.1304 (2010).
The issues of entitlement to service connection for residuals of
a neck injury, residuals of a left shoulder injury, a low back
disorder, an upper respiratory disorder, and hypertension are
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. In a September 2005 rating decision, the RO denied the
Veteran's claims of entitlement to service connection for
residuals of a neck injury, residuals of a left shoulder injury,
a low back disorder, an upper respiratory disorder, and
hypertension.
2. The Veteran filed a Notice of Disagreement (NOD) received by
the RO in August 2006, indicating his desire to appeal the
September 2005 rating decision.
3. The RO did not issue a Statement of the Case (SOC) until March
2007; a March 15, 2007, notification letter informed the Veteran
that his Substantive Appeal must have been received within 60
days of the date of the SOC notice letter, or within the
remainder of the one-year period of the letter notifying him of
the rating decision being appealed.
4. The Veteran's signed Substantive Appeal, dated May 4, 2007,
was date-stamped as received at the RO on October 23, 2007.
5. The Veteran testified during his July 2010 BVA hearing that
he signed, dated, and mailed the Substantive Appeal to the RO
with the assistance of his representative in May 2007.
CONCLUSION OF LAW
Resolving doubt in the Veteran's favor, the Board finds that the
Veteran timely and adequately appealed the September 2005 rating
decision denying his claims of entitlement to service connection
for residuals of a neck injury, residuals of a left shoulder
injury, a low back disorder, an upper respiratory disorder, and
hypertension. 38 U.S.C.A. §§ 7105(d)(3), 7108 (West 2002 & Supp.
2010); 38 C.F.R. §§ 20.200, 20.202, 20,301, 20.302, 20.305
(2010); Percy v. Shinseki, 23 Vet. App. 37 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by the VCAA, VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2010).
As this decision represents a complete grant of the Veteran's
appeal to the extent that the Board finds that Veteran did submit
an adequate and timely Substantive Appeal to the September 2005
rating decision that denied his service connection claims, no
further action is required to comply with the VCAA and the
implementing regulations for that matter.
II. The Merits of the Claim
Governing Law and Regulations
The Board has jurisdiction over appeals of questions of law and
fact that involve entitlement to VA benefits, as well as to
resolve questions of its own jurisdiction. See 38 U.S.C.A. §
7104 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2010). Appellate
review is initiated by the filing of a NOD, and is completed by
the filing of a Substantive Appeal after a SOC has been
furnished. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§
20.200, 20.201 (2010). In order to perfect an appeal to the
Board, a claimant must file a Substantive Appeal, which consists
of a properly completed VA Form 9 or correspondence containing
the necessary information. See 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. § 20.202 (2010).
In terms of time frame, the Board observes that a NOD must be
filed within one year from the date that the RO mails notice of a
determination. The date of mailing of the notification is
presumed to be the same as the date of the letter. See 38 C.F.R.
§ 20.302(a) (2010). The Substantive Appeal must be filed within
60 days from the date that the RO mails the SOC to the Veteran,
or within the remainder of the one year period from the date of
mailing of the notification of the determination being appealed,
whichever period ends later. The date of mailing of the SOC will
be presumed to be the same as the date of the SOC for purposes of
determining whether an appeal has been timely filed. See 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302(b) (2010).
The law requires that a Substantive Appeal should set out
specific arguments relating to errors of fact or law made by the
agency of original jurisdiction in reaching the determination, or
determinations, being appealed. To the extent possible, the
argument should be related to specific items in the SOC. The
Board will construe such arguments in a liberal manner for
purposes of determining whether they raise issues on appeal, but
the Board must dismiss any appeal over which it lacks
jurisdiction. Jurisdiction over an issue does not vest in the
Board until an appeal to the Board has been properly perfected by
the timely filing of an adequate Substantive Appeal. See 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2010). A
decision as to the adequacy of a Substantive Appeal will be made
by the Board. See 38 U.S.C.A. § 7108 (West 2002); 38 C.F.R. §
20.101(d) (2010).
Factual Background and Analysis
As an initial matter, the Board must address the timeliness of a
Substantive Appeal submitted by the Veteran in relationship to a
September 2005 rating decision that denied claims for entitlement
to service connection. In terms of history, a review of the
record reveals that the Veteran submitted an application for
compensation in June 2005 that included claims of entitlement to
service connection for residuals of a neck injury, residuals of a
left shoulder injury, a low back disorder, an upper respiratory
disorder, and hypertension.
In a September 2005 rating decision, the RO denied the Veteran's
claims of entitlement to service connection for residuals of a
neck injury, residuals of a left shoulder injury, a low back
disorder, an upper respiratory disorder, and hypertension. He
filed a NOD received by the RO in August 2006, indicating his
desire to appeal the September 2005 rating decision.
In March 2007, the RO issued a SOC. A March 15, 2007,
notification letter informed the Veteran that his Substantive
Appeal must have been received within 60 days of the date of the
SOC notice letter, or within the remainder of the one-year period
of the letter notifying him of the rating decision being
appealed.
The Veteran's signed Substantive Appeal, dated May 4, 2007, was
date-stamped as received at the RO on October 23, 2007.
In light of the fact that the Veteran's Substantive Appeal was
date-stamped by VA as being received in October 2007, the RO
found the Substantive Appeal to be untimely and closed the
Veteran's appeal in a November 2007 determination. Thereafter,
the Veteran disagreed with the closing of his appeal and
perfected an appeal regarding the timeliness of his Substantive
Appeal.
He has consistently asserted that he signed, dated, and mailed
the Substantive Appeal form to the RO on May 4, 2007, in multiple
statements as well as during his July 2010 Board hearing. In
July 2010, he submitted a copy of a memorandum dated on May 4,
2007, that was executed by his representative. He asserted that
the form was submitted along with his Substantive Appeal in May
2007. In the memo addressed to the RO, it is indicated that the
representative was submitting for consideration supporting
evidence as indicated below and the section below listed as Form
9 had been clearly marked by the Veteran's representative.
After reviewing the Veteran's statements and testimony in
conjunction with the other evidence contained in the claims file,
the Board finds his assertions pertaining to the submission of
his Substantive Appeal to be credible; and therefore concludes
that reasonable doubt requires the Substantive Appeal to be found
both adequate and timely. In making these determinations, the
Board finds guidance in the recent Court decision of Percy v.
Shinseki, 23 Vet. App. 37 (2009).
In Percy v. Shinseki, the Court addressed the question of whether
the requirement that a claimant file a timely Substantive Appeal
under 38 U.S.C.A. § 7105(d)(3) is a jurisdictional predicate to
the Board's adjudication of a matter. Id., p. 38. In analyzing
this question, the Court distinguished the issues of a timely NOD
versus a timely Substantive Appeal. In doing so, the Court
confirmed that the absence of a timely NOD is a jurisdictional
bar to consideration of a Veteran's claim; however, the Court
also confirmed that an untimely Substantive Appeal is NOT a
jurisdictional bar to consideration of a veteran's claim, and
that the RO and the Board may accept a Substantive Appeal even if
it is not timely. Id., pgs. 42-46. Further, the Court cited 38
U.S.C.A. § 7105(d)(3) for the proposition that "VA may close an
appeal for failure to file a timely Substantive Appeal, in which
case the Board may decline to exercise jurisdiction over the
appeal as a prudential matter, even though section 7105(d)(3) is
not properly termed jurisdictional." Id., p. 46 (emphasis in
original), citing Eberhart v. United States, 546 U.S. 12
(2005)(parallel citations omitted).
In making the above-referenced findings, the Board acknowledges
that the factual scenario in Percy is distinguishable from the
case at hand, as the Court in Percy specifically found that,
because the RO had never addressed the issue of timeliness in the
SOC, and because the veteran was not informed that there was a
timeliness issue until his claim was before the Board, the RO had
essentially waived any objections it might have offered to the
timeliness, and had implicitly accepted the veteran's appeal.
Id., pgs. 46-48. In the present case on appeal, the RO rejected
the Veteran's Substantive Appeal as evidenced by the issuance of
the November 2007 determination. However, regardless of the RO's
actions in closing the Veteran's appeal, the Board finds that the
circumstances of this case warrant the acceptance of the
Substantive Appeal in light of the fact that the Veteran has
consistently and clearly expressed his intention to timely appeal
the RO's September 2005 rating decision.
In this regard, the Board finds it particularly notable that the
Veteran submitted a cover letter from his representative dated on
May 4, 2007, with the section designated for submission of the
Form 9 marked. Additionally, the Veteran has credibly testified
that he filed his Substantive Appeal as soon as he received the
March 2007 letter from the RO informing him of the need to do so.
The fact that the Veteran diligently and timely submitted a NOD
after being notified of the RO of the need to do so lends
credibility to the Veteran's assertions of diligence in
relationship to the submission of his Substantive Appeal. See
also Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder
of fact, the Board, when considering whether evidence is
satisfactory, the Board may also properly consider internal
inconsistency of the statements, facial plausibility, consistency
with other evidence submitted on behalf of the veteran, and the
veteran's demeanor when testifying at a hearing). Moreover, the
Board also assigns value to arguments made by the Veteran that
his representative assisted him in submitting the signed VA Form
9 in May 2007. See 38 C.F.R. § 20.301(a) (2010).
Accordingly, in light of the foregoing and resolving all
reasonable doubt in the Veteran's favor (see 38 U.S.C.A. §
5107(b) (West 2002) and 38 C.F.R. § 3.102 (2010)), the Board
finds that the Veteran's Substantive Appeal was timely filed,
thereby perfecting his appeal of the claims of entitlement to
service connection for residuals of a neck injury, residuals of a
left shoulder injury, a low back disorder, an upper respiratory
disorder, and hypertension. As such, the above-referenced
service connection claims must be adjudicated on a de novo basis.
ORDER
An appeal has been timely perfected with respect to the Veteran's
claims of entitlement to service connection for residuals of a
neck injury, residuals of a left shoulder injury, a low back
disorder, an upper respiratory disorder, and hypertension.
REMAND
On his May 2007 substantive appeal, which the Board found to be
timely filed above, the Veteran made an untimely request for a de
novo review of his claim under 38 C.F.R. § 3.2600 by a Decision
Review Officer (DRO) but also indicated that he desired a hearing
before a Veterans Law Judge (VLJ) of the Board at the RO if a
favorable decision could not be made on DRO review. A review of
the claims folder indicates that he has not been accorded such a
hearing for these matters, nor has he withdrawn his request for
one. Pursuant to 38 C.F.R. § 20.700 (2010), a hearing on appeal
will be granted to an appellant who requests a hearing and is
willing to appear in person. 38 U.S.C.A. § 7107 (West 2002)
(pertaining specifically to hearings before the Board). Since
the RO schedules Travel Board hearings, a remand of these matters
to the RO is warranted.
Accordingly, the case is REMANDED for the following action:
The RO should schedule the Veteran for a
Travel Board hearing at the earliest
available opportunity. The RO should notify
the Veteran and his representative of the
date and time of the hearing, in accordance
with 38 C.F.R. § 20.704(b) (2010). After the
hearing, the claims file should be returned
to the Board in accordance with current
appellate procedures.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
(CONTINUED ON NEXT PAGE)
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West 2002 & Supp. 2010).
______________________________________________
K. A. KENNERLY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs